Order Code RL33152
The National Environmental Policy Act:
Background and Implementation
Updated June 7, 2007
Linda Luther
Analyst in Environmental Policy
Resources, Science, and Industry Division
The National Environmental Policy Act:
Background and Implementation
Summary
Beginning in the late 1950s and through the 1960s, Congress reacted to
increasing public concern about the impact that human activity could have on the
environment. A key legislative option to address this concern was the declaration of
a national environmental policy. Advocates of this approach argued that without a
specific policy, federal agencies were neither able nor inclined to consider the
environmental impacts of their actions in fulfilling the agency’s mission. The statute
that ultimately addressed this issue was the National Environmental Policy Act of
1969 (NEPA, 42 U.S.C. §§ 4321-4347).
Signed into law by President Nixon on January 1, 1970, NEPA was the first of
several major environmental laws passed in the 1970s. It declared a national policy
to protect the environment and created a Council on Environmental Quality (CEQ)
in the Executive Office of the President. To implement the national policy, NEPA
required that a detailed statement of environmental impacts be prepared for all major
federal actions significantly affecting the environment. The “detailed statement”
would ultimately be referred to as an environmental impact statement (EIS).
With an initial absence of regulations specifying implementation procedures and
no agency authorized to enforce the law, federal agencies reacted in different ways
to NEPA’s requirements. Some had difficulty complying with the law’s EIS
requirements. As a result, litigation that served to interpret NEPA’s requirements and
enforce agency compliance began almost immediately. In addition to questions of
procedure (e.g., how, when, or why an EIS must be prepared), another question was
how the environmental policy goals of the act should be implemented or enforced.
The courts ultimately decided that NEPA is a procedural statute with twin aims
requiring agencies to (1) consider the environmental impacts of their proposed
actions and (2) inform the public that they (the agencies) considered environmental
concerns in their decision-making process. In that capacity, NEPA has become a
primary mechanism for public participation in the federal decision-making process.
As it has been implemented, most agencies use NEPA as an “umbrella” statute.
As such, NEPA forms a framework to coordinate or demonstrate compliance with
any study, review, or consultation required by other environmental laws. The use of
NEPA in this capacity can lead to confusion. The need to comply with another
environmental law, such as the Clean Water Act, may be identified within the
framework of the NEPA process, but NEPA itself is not the source of the obligation.
Theoretically, if the requirement to comply with NEPA were removed, compliance
with each applicable law would still be required.
This report discusses NEPA’s history, its provisions, and the evolution of its
implementation; it also provides an overview of how agencies implement NEPA’s
requirements. This report will be updated as developments warrant.
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
NEPA and Its History . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Background and Legislative History . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Overview of NEPA’s Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
The Evolution of NEPA’s Implementation . . . . . . . . . . . . . . . . . . . . . . . . . . 8
The Role of the Courts in Implementing NEPA . . . . . . . . . . . . . . . . . . 9
The Role of CEQ in Implementing NEPA . . . . . . . . . . . . . . . . . . . . . . 10
Determining When NEPA Applies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Federal Actions Subject to NEPA . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Determining the Significance of a Federal Action . . . . . . . . . . . . . . . . 15
Overview of the NEPA Process . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Environmental Impact Statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Environmental Assessments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Categorical Exclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Agency Participation in the NEPA Process
. . . . . . . . . . . . . . . . . . . . . . . . 23
Responsibilities of the Lead and Cooperating Agencies . . . . . . . . . . . 23
Addressing Agency Comments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
EPA’s Unique Role in the NEPA Process . . . . . . . . . . . . . . . . . . . . . . 25
Demonstrating Public Involvement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
The Use of NEPA as an “Umbrella” Statute . . . . . . . . . . . . . . . . . . . . . . . . 27
NEPA Implementation and Project Delays . . . . . . . . . . . . . . . . . . . . . . . . . 28
Causes of Project Delays Attributed to the NEPA Process . . . . . . . . . 28
Studies Into NEPA’s Effectiveness and Causes of Delays . . . . . . . . . 30
Efforts to Streamline the NEPA Process . . . . . . . . . . . . . . . . . . . . . . . 32
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Selected References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
List of Figures
Figure 1. Overview of the NEPA Process . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
List of Tables
Table 1. Typical Categories of “Federal Actions” Subject to NEPA . . . . . . . . . 14
Table 2. Selected Examples of Agency Actions Requiring
Environmental Review Under NEPA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Table 3. Components of an EIS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Table 4. Selected Federal Statutes and
Potential Corresponding Key Cooperating Agencies . . . . . . . . . . . . . . . . . . 23
Table 5. Categories of Legal Requirements Potentially Applicable
to Federal Actions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
The National Environmental Policy Act:
Background and Implementation
Introduction
Prior to the 1960s, little formal consideration was given to the potential impact
of human activity on the environment. Beginning in the late 1950s and into the
1960s, the public became increasingly aware of and concerned about those impacts.
During that time, Members of Congress debated the need for a national policy on the
environment and for an Executive-level council or committee that could provide
advice to the President on environmental policy issues. The statute that ultimately
addressed these needs was the National Environmental Policy Act of 1969 (NEPA,
42 U.S.C. §§ 4321-4347).
Signed into law by President Nixon on January 1, 1970, NEPA was the first of
several major environmental laws passed in the 1970s. It declared a national policy
to protect the environment. To implement its policy, NEPA requires federal agencies
to provide a detailed statement of environmental impacts, subsequently referred to
as an environmental impact statement (EIS), for every recommendation or report on
proposals for legislation and other major federal action significantly affecting the
quality of the human environment.
The act also created the Council on Environmental Quality (CEQ) in the
Executive Office of the President. Among other duties, CEQ provides oversight of
NEPA’s implementation. In 1978, CEQ was authorized by executive order to issue
regulations applicable to all federal agencies regarding the preparation of EISs.
However, CEQ was not authorized to enforce those regulations.
As it was subsequently interpreted, NEPA is a procedural statute with two
primary aims. First, it obligates federal agencies to consider every significant aspect
of the environmental impact of an action before proceeding with it. Second, it
ensures that the agency responsible for the action will inform the public what the
action is and that it has considered environmental concerns in its decision-making
process. In this capacity, NEPA has become one of the primary mechanisms through
which the public is able to participate in the federal decision-making process.
As a procedural statute, NEPA does not require agencies to elevate
environmental concerns above others. Instead, NEPA requires only that the agency
assess the environmental consequences of an action and its alternatives before
proceeding. If the adverse environmental effects of the proposed action are
adequately identified and evaluated, the agency is not constrained by NEPA from
deciding that other benefits outweigh the environmental costs and moving forward
with the action.
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Most agencies use NEPA as an umbrella statute — that is, a framework to
coordinate or demonstrate compliance with any studies, reviews, or consultations
required by any other environmental laws. The use of NEPA in this capacity can lead
to confusion. The need to comply with another environmental law, such as the Clean
Water Act or Endangered Species Act, may be identified within the framework of the
NEPA process, but NEPA itself is not the source of the obligation. Theoretically, if
the requirement to comply with NEPA were removed, compliance with each
applicable law would still be required.
Unlike other environment-related statutes, no individual agency has enforcement
authority with regard to NEPA’s environmental review requirements.1 This absence
of enforcement authority is sometimes cited as the reason that litigation has been
chosen as an avenue by individuals and groups that disagree with how an agency
meets NEPA’s mandate or EIS requirements for a given project. (For example, a
group may charge that an EIS is inadequate or that the environmental impacts of an
action will in fact be significant when an agency claims they are not). Critics of
NEPA charge that those who disapprove of a federal project will use NEPA as the
basis for litigation to delay or halt that project. Others argue that litigation only
results when agencies do not comply with NEPA’s procedural requirements.
Environmental groups often refer to NEPA as the “Magna Carta” of
environmental law. They view it as an essential tool to help agencies plan and
manage federal actions in a responsible way by requiring policymakers and project
sponsors to consider the environmental implications of their actions before decisions
are made. Environmental groups also view the NEPA process as an important
mechanism in providing the public with an opportunity to be involved in agency
planning efforts. Critics charge that the law creates a complicated array of
regulations and logistical delays that stall agency action.
This report provides information about NEPA’s background and legislative
history, provisions of the law, the role of the courts and CEQ in its implementation,
how agencies implement NEPA’s requirements, how the public is involved in the
NEPA process, the means by which NEPA is used as an umbrella statute to
coordinate or demonstrate compliance with other environmental requirements, and
claims by some stakeholders that NEPA causes delays in some federal actions. (For
a legally oriented overview of NEPA requirements, see CRS Report RS20621,
Overview of NEPA Requirements, by Kristina Alexander.)
1 CEQ is charged with providing oversight and guidance to agencies with regard to EIS
preparation. The Environmental Protection Agency (EPA) is required to review and
comment publicly on the environmental impacts of proposed federal activities, including
those for which an EIS is prepared. EPA is also the official recipient of all EISs prepared
by federal agencies. However, neither agency has enforcement authority with regard to an
agency’s environmental review requirements.
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NEPA and Its History
In the 1950s and 1960s, Congress began to react to increasing public concern
about the environment. In the congressional debates that ensued, a key legislative
option considered was the declaration of a national environmental policy. Such a
policy would require all federal agencies, whose actions were often seen as
significant sources of pollution, to adhere to certain environmental values and goals.
Advocates of a national policy argued that without a specific environmental policy,
federal agencies were neither able nor inclined to consider the environmental impacts
of their actions in fulfilling the agency’s mission. Debate also existed regarding the
creation of an Executive-level board or council that would gather information
regarding the state of the environment and provide environmental policy advice to
the President.
Background and Legislative History. For at least 10 years before NEPA
was enacted, Congress debated issues that the act would ultimately address. The act
was modeled on the Resources and Conservation Act of 1959, introduced by Senator
James E. Murray in the 86th Congress. That bill would have established an
environmental advisory counsel in the office of the President, declared a national
environmental policy, and required the preparation of an annual environmental
report.2
In the years following the introduction of Senator Murray’s bill, similar bills
were introduced and hearings were held to discuss the state of the environment and
Congress’s potential responses to perceived problems. In 1968, a joint House-Senate
colloquium was convened by the chairmen of the Senate Committee on Interior and
Insular Affairs (Senator Henry Jackson) and the House Committee on Science and
Astronautics (Representative George Miller) to discuss the need for and potential
means of implementing a national environmental policy. In the colloquium, some
Members of Congress expressed a continuing concern over federal agency actions
affecting the environment. Governor Laurence Rockefeller, a participant in the
colloquium, stated before the joint committee:
[W]e do not have a clearly stated national attitude toward the environment. In the
areas of civil rights, education, full employment, and a number of others, the
Congress of the United States has set forth a clearly understood national policy.
This lack of overall national policy has been reflected in recent action of the
courts in reversing decisions of administrative agencies on the grounds that they
did not give sufficient consideration to environmental factors. Clearly, these
agencies need better guidelines.3
2 S.Rept. 91-296, 91st Cong., 1st sess., July 9, 1969, pp. 11-12, and Lynton Caldwell, The
National Environmental Policy Act: An Agenda for the Future, Indiana University Press,
1998, pp. 26-27.
3 Statement by Governor Rockefeller in Joint House-Senate Colloquium to Discuss a
National Policy for the Environment, Hearing before the Committee on Interior and Insular
Affairs, United States Senate, and the Committee on Science and Astronautics, U.S. House
of Representatives, July 17, 1968, p. 5.
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Many of the concepts and ideas drawn from this colloquium would ultimately
form the basis for the bills that would become NEPA. For example, in discussing
new approaches to government, Senator Jackson argued that new approaches to
environmental management were required, and he urged the colloquium to provide
thoughts on possible “action-forcing” processes that could be put into operation.4 The
discussion of action-forcing processes to implement a national policy provided the
seeds of the idea that would eventually become the requirement to prepare an
environmental impact statement.
The bills that would become NEPA were introduced in the Senate and House
in 1969 by Senator Jackson and Representative John Dingell.5 In introducing the
Senate bill, Senator Jackson stated that its purpose was to “lay the framework for a
continuing program of research and study which will insure that present and future
generations of Americans will be able to live in and enjoy an environment free of
hazards to mental and physical well-being.”6 To accomplish this end, the Senate bill
authorized federal agencies to conduct investigations and gather data on
environmental issues. The bill also established a Council on Environmental Quality
to analyze and study the information gathered and to advise and assist the President
in the formulation of national policies.
The Senate Committee on Interior and Insular Affairs held a hearing on the
proposed bills7 in April 1969. During the hearing, the concept of creating some
action-forcing mechanism, as a means of implementing a national environmental
policy, was again discussed. One of the witnesses to provide testimony at the hearing
was Dr. Lynton Caldwell.8 An interchange during the hearing between Dr. Caldwell
and Senator Jackson is considered by some as the point at which the provision behind
the environmental impact statement requirement was introduced. Following are
relevant excerpts from that testimony:
Dr. Caldwell: I would urge that in shaping [an environmental] policy, it have an
action-forcing, operational aspect...For example, it seems that a statement of
4 “Congressional White Paper on a National Policy for the Environment,” issued jointly by
the Committee on Interior and Insular Affairs, United States Senate, and the Committee on
Science and Astronautics, U.S. House of Representatives, summarizing key points raised in
the dialog, October 1968, Committee Print, p. 9.
5 S. 1075 was introduced by Senator Jackson on February 18, 1969. H.R. 12549 was
introduced by Representative John Dingell, and others, on July 1, 1969.
6 Senator Jackson’s remarks regarding “S. 1075 — Introduction of Bill to Establish a
National Strategy for the Management of the Human Environment,” vol. 115, Congressional
Record, p. S1780, February 18, 1969 (reprinted in National Environmental Policy Act of
1969: Legislative History, Senate bill 1075, Public law 91-190, 91st Congress, 1st session,
James D. Nuse, compiler, for the U.S. Atomic Energy Commission, September 1970).
7 Although several similar bills were introduced in the Senate that session, those that
ultimately received consideration by the Committee were S. 1075, S. 237 (which included
a declaration of environmental policy) and S. 1752.
8 Dr. Caldwell is a Professor of Public and Environmental Affairs at Indiana University and
was a staff consultant to the Senate Committee on Interior and Insular Affairs on a National
Policy for the Environment, 1968-1970.
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policy by the Congress should at least consider measures to require Federal
agencies, in submitting proposals, to contain within the proposals an evaluation
of the effect of those proposals upon the state of the environment...
Senator Jackson: I have been concerned with the inadequacy of the policy
declaration in the bill I have introduced. Obviously this is not enough. It does,
however, provide a predicate from which to launch at a discussion as to what is
required and how we should proceed...[W]hat is needed in restructuring the
governmental side of this problem is to legislatively create those situations that
will bring about an action-forcing procedure the departments must comply with.
Otherwise, these lofty declarations are nothing more than that.9
Senator Jackson further discussed the potential of broadening the policy
provision in the bill to stipulate a general requirement applicable to all agencies that
have responsibilities that affect the environment. In doing so, the Senator stated that
he was “trying to avoid recodification of all the statutes.”10
After the Senate hearing, Senator Jackson introduced amendments to the Senate
bill.11 Included in the amendments was a declaration of national environmental
policy. Another amendment included a requirement that “all agencies of the Federal
Government ... include in every recommendation or report on proposals for
legislation and other major Federal actions significantly affecting the quality of the
human environment, a finding by the responsible official that ... the environmental
impact of the proposed action has been studied and considered.”12 [Emphasis added.]
In July 1969, the Senate passed its version of NEPA (S. 1075) without debate
and no amendments offered. In September 1969, the House passed its version (H.R.
12549) by 372 to 15. The following December, the conference committee
subsequently reported out a version containing various additions and compromises.
In particular, in conference, the requirement for all major federal actions to be
preceded by a “finding” on environmental impacts was changed to the requirement
that a “detailed statement” on environmental impacts be prepared. The detailed
statement would later be referred to as an environmental impact statement (EIS).
Also included in conference was the requirement that certain federal agencies, other
than the one preparing the EIS, be required to review the detailed statement.
It is unclear from the legislative history whether Congress intended for the EIS
requirement to become the central element of NEPA compliance that it has.
However, in addition to discussions regarding the need for action-forcing provisions
to enforce the environmental policy, the legislative history includes statements
regarding the need for federal agencies to consider the impacts of their actions. In
discussing the relationship of the proposed legislation to existing policies and
9 Hearing before the Committee on Interior and Insular Affairs, United States Senate, 91st
Congress, 1st Session, on S. 1075, S. 237, and S. 1752, April 16, 1969, p. 116.
10 Ibid., p. 117.
11 S. 1075 Amendments, referred to Senate Committee on Interior and Insular Affairs, May
29, 1969.
12 Section 102(C), S. 1075 Amendments, May 29, 1969.
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institutions, the Senate report states: “Many older operating agencies of the Federal
Government ... do not at present have a mandate within the body of their enabling
laws to allow them to give adequate attention to environmental values ... [The Senate
bill] would provide all agencies and all Federal officials with a legislative mandate
and a responsibility to consider the consequences of their actions on the
environment.”13
In late December, after minimal debate, both the House and Senate agreed to the
conference report. On January 1, 1970, President Nixon signed NEPA into law.
In the more than 30 years since passage of NEPA, Congress has amended the
law only to include minor technical changes.14 However, within a year after NEPA’s
passage, a section was added to the Clean Air Act (42 U.S.C. 7401 et seq.) that
affected the way NEPA is implemented. To further clarify agencies’ responsibilities
with regard to public involvement in the NEPA process, in December 1970, Congress
added Section 309 to the Clean Air Act.15 Provisions of Section 309 made explicit
that the Administrator of the newly formed Environmental Protection Agency (EPA)
has a duty to examine and comment on all EISs. After that review, the Administrator
was directed to make those comments public and, if the proposal was
environmentally “unsatisfactory,” to publish this finding and refer the matter to the
CEQ. EPA subsequently developed a program for reviewing and rating federal
agency projects (see “EPA’s Unique Role in the NEPA Process” section, below).
Overview of NEPA’s Provisions. The goals of NEPA are to declare a
national environmental policy, provide federal agencies with action-forcing
provisions intended to ensure that the goals of the policy are implemented, establish
the Council on Environmental Quality (CEQ) to provide advice to the President on
environmental matters and to monitor the state of the environment, and require the
President to submit to Congress an annual report on the state of the environment.
These provisions are contained within NEPA’s two titles. Title I declares a national
environmental policy that states, in part:
[I]t is the continuing policy of the Federal Government, in cooperation with State
and local governments, and other concerned public and private organizations, to
use all practicable means and measures ... to create and maintain conditions
under which man and nature can exist in productive harmony...16
The act also specifies broad national goals. NEPA declares that it is the
“continuing responsibility of the Federal Government to use all practicable means,
13 S.Rept. 91-296, p. 14.
14 NEPA was amended by P.L. 94-52, July 3, 1975, regarding how CEQ may spend
appropriated funds; P.L. 94-83, August 9, 1975, specifying parameters under which states
may prepare an EIS; and P.L. 97-258, § 4(b), September 13, 1982, regarding budget and
accounting procedures.
15 42 U.S.C. § 7609.
16 42 U.S.C. § 4331.
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consistent with other essential considerations of national policy, to improve and
coordinate Federal plans...[so] that the Nation may —
! Fulfill the responsibilities of each generation as trustee of the
environment for succeeding generations;
! Assure for all Americans safe, healthful, productive, and
aesthetically and culturally pleasing surroundings;
! Attain the widest range of beneficial uses of the environment
without degradation, risk to health or safety, or other undesirable and
unintended consequences;
! Preserve important historic, cultural, and natural aspects of our
national heritage, and maintain, wherever possible, an environment
which supports diversity, and variety of individual choice;
! Achieve a balance between population and resource use which will
permit high standards of living and a wide sharing of life’s
amenities; and
! Enhance the quality of renewable resources and approach the
maximum attainable recycling of depletable resources.”17
Title I also includes the action-forcing, procedural requirements intended to
ensure that federal agencies adhere to NEPA’s goals. Section 102 forms the basic
framework for federal decision making under the “NEPA process.” This section
includes several provisions and requires that policies, regulations, and public laws
of the United States be interpreted and administered according to NEPA’s policies.
Among other things, Section 102 requires federal agencies to use a “systematic,
interdisciplinary approach” in planning and decision making that may have an impact
on the environment.
To ensure that environmental impacts are considered, Section 102(2)(C) of
NEPA requires all federal agencies to include in “every recommendation or report
on proposals for legislation and other major Federal actions significantly affecting
the quality of the human environment, a detailed statement by the responsible official
on the environmental impact of the proposed action.”18 In addition to environmental
impacts, federal agencies are required to provide an analysis of
! any adverse environmental effects that cannot be avoided should the
proposal be implemented,
! alternatives to the proposed action,
! the relationship between local short-term uses of man’s environment
and the maintenance and enhancement of long-term productivity,
and
17 42 U.S.C. § 4331(b).
18 42 U.S.C. § 4332(2)(C).
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! any irreversible and irretrievable commitments of resources that
would be involved in the proposed action should it be
implemented.19
NEPA also requires federal agencies to study and develop appropriate
alternatives to the recommended action for any project involving “unresolved
conflicts concerning alternative uses of available resources.”20 This requirement is
not limited to actions that require an environmental impact statement.
Section 103 of NEPA directs all federal agencies to review their existing
statutory authority, administrative regulations, and policies and procedures to
determine whether any deficiencies or inconsistencies would “prohibit full
compliance with the purposes and provisions” of the act.21 After conducting this
review, the agencies are directed to take necessary measures to make their policies
conform with NEPA’s intent. NEPA also states that its policies and goals are
supplementary to existing law.22
Title II of NEPA establishes the CEQ in the Executive Office of the President
and specifies its responsibilities. It requires CEQ to submit to Congress an annual
Environmental Quality Report on such topics as the condition of the environment,
trends in the quality of the environment, and a review of federal, state and local
programs to address environmental concerns.23 Also, the act specifies a list of duties
and functions that allow CEQ to support the President in information gathering and
policy making with regard to environmental issues.
The Evolution of NEPA’s Implementation
NEPA is a declaration of policy with action-forcing provisions, not a regulatory
statute comparable to other environmental laws intended to protect air, water,
wetlands, or endangered species.24 It establishes the basic framework for integrating
environmental considerations into federal decision making. However, the law itself
does not provide details on how this process should be accomplished.
With an initial absence of regulations specifying implementation procedures and
no agency authorized to enforce its requirements, federal agencies have reacted in
different ways to NEPA’s requirements. Some initially had difficulty complying
19 Ibid.
20 42 U.S.C. § 4332(2)(E).
21 42 U.S.C. § 4333.
22 42 U.S.C. § 4335.
23 42 U.S.C. § 4341. The 1997 Environmental Quality Report was the last one prepared by
CEQ. The Federal Reports Elimination and Sunset Act of 1995 (P.L. 104-66) eliminated
many congressionally mandated reports, including the annual CEQ Environmental Quality
Report, unless explicitly requested by Congress.
24 Lynton Caldwell, The National Environmental Policy Act: An Agenda for the Future,
Indiana University Press, 1998, p. 2.
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with NEPA. Others believed that they were not required to comply with NEPA’s
provisions at all. As a result, litigation to enforce agency compliance with NEPA’s
mandate began almost immediately.
In addition to questions of procedure (e.g., how, when, or why an EIS must be
prepared), another question ultimately to be determined was how the environmental
policy goals of the act should be implemented or enforced. The courts and CEQ
played significant roles in determining how those questions were answered and,
consequently, how NEPA was ultimately implemented.
The Role of the Courts in Implementing NEPA. Almost since NEPA’s
enactment, the courts have played a prominent role in interpreting and, in effect,
enforcing NEPA’s requirements.25 Beginning almost immediately and continuing
into the early 1980s, the courts emphasized agency compliance with NEPA’s
procedural EIS requirements but did little to delineate specific compliance
requirements connected to the substantive environmental policy goals. In 1983, the
U.S. Supreme Court clarified that
NEPA has twin aims. First, it places upon an agency the obligation to consider
every significant aspect of the environmental impact of a proposed action.
Second, it ensures that the agency will inform the public that it has indeed
considered environmental concerns in its decisionmaking process. Congress in
enacting NEPA, however, did not require agencies to elevate environmental
concerns over other appropriate considerations. Rather, it required only that the
agency take a “hard look” at the environmental consequences before taking a
major action ... Congress did not enact NEPA, of course, so that an agency would
contemplate the environmental impact of an action as an abstract exercise.
Rather, Congress intended that the “hard look” be incorporated as part of the
agency’s process of deciding whether to pursue a particular federal action.26
This specification of NEPA’s “twin aims” and the “hard look” requirement are often
cited by both federal agencies and environmental advocates to articulate NEPA’s
mandate. In 1989, the U.S. Supreme Court reiterated that NEPA does not mandate
particular results, but simply prescribes a process.27 If the adverse environmental
effects of a proposed action are adequately identified and evaluated, NEPA does not
constrain an agency from deciding that other values outweigh the environmental
costs. The Court further clarified that “other statutes may impose substantive
environmental obligations on federal agencies, but NEPA merely prohibits
uninformed, rather than unwise, agency action.”28
In addition to determining the substantive versus procedural question, the courts
have determined many specific procedural elements of NEPA compliance. For
example, for individual actions, courts have ruled on agency interpretation of the
25 For an analysis of legal issues, consult the American Law Division of CRS.
26 Baltimore Gas & Electric Co. v. Natural Resources Defense Council, Inc., 462 U.S. 87,
97, 100 (1983).
27 Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (1989).
28 Ibid., at 351.
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meaning of the phrases “federal action,” “significantly affecting,” and “human
environment.” Also, the courts played a significant role in determining how and
when federal agencies were required to prepare EISs. Some questions decided by the
courts involved such issues as the adequacy of individual EISs, who must prepare an
EIS, at what point an EIS must be prepared, and how adverse comments from
agencies should be handled. Such decisions were, at least in part, the basis of CEQ
guidelines released during the 1970s and were subsequently considered when CEQ
promulgated its regulations (see “The Role of CEQ in Implementing NEPA” section,
below).
The role of the courts in implementing the NEPA process has sometimes been
controversial. Critics of NEPA charge that opponents of a given federal project will
use litigation related to the NEPA process to delay or halt a project. Others assert
that litigation is used primarily when an agency does not comply with its own NEPA
procedures (see “NEPA Implementation and Project Delays” section, below).
The Role of CEQ in Implementing NEPA. Authority to promulgate
regulations to implement NEPA’s provisions was not expressly included among the
duties and responsibilities given to CEQ under NEPA. However, shortly after
signing NEPA, President Nixon issued an Executive Order authorizing CEQ to issue
“regulations” for the implementation of the procedural provisions of the act.29 The
Executive Order directed CEQ to develop regulations that would be
[D]esigned to make the environmental impact statement process more useful to
decision makers and the public; and to reduce paperwork and the accumulation
of extraneous background data, in order to emphasize the need to focus on real
environmental issues and alternatives...[and] require impact statements to be
concise, clear, and to the point, and supported by evidence that agencies have
made the necessary environmental analyses.
The Executive Order also directed federal agencies to hold public meetings and
promote public involvement in the NEPA process. The Executive Order did not
extend to CEQ the authority to make these regulations legally binding on federal
agencies. Therefore, they would serve as only guidance for compliance.
During the 1970s, CEQ continued to issue guidelines that addressed the basic
requirements of EIS preparation. CEQ left NEPA implementation largely to the
discretion of federal agencies, which were to use the CEQ guidelines to prepare their
own procedures. Still, many agencies were slow to do so, with many initially arguing
that NEPA did not apply to them.30
During the mid-1970s, frequent complaints were raised regarding the delays that
the NEPA process was perceived to cause in the decision-making process. Some
observers attributed these problems to a lack of uniformity in NEPA implementation
29 Executive Order 11514, Protection and Enhancement of Environmental Quality, signed
by President Nixon, March 5, 1970, 35 Federal Register 4247.
30 H.Rept. 92-316, “Administration of the National Environmental Policy Act,” June 1971.
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and uncertainty regarding what was required of federal agencies.31 Also, in response
to increasing NEPA-related litigation, agencies often produced overly lengthy,
unreadable, and unused EISs.32 In an effort to standardize an increasingly
complicated NEPA process, President Carter amended President Nixon’s Executive
Order, directing CEQ to issue regulations that would be legally binding on federal
agencies.33 Final regulations replacing the previous guidelines were issued in the fall
of 1978 and became effective on July 30, 1979.34 CEQ’s regulations were intended
to foster better decision making and reduce the paperwork and delays associated with
NEPA compliance.35 CEQ’s regulations also specified that the purpose of the NEPA
process was to
! inform federal agencies of what they must do to comply with the
procedures and achieve the goals of NEPA;
! ensure that the environmental information made available to public
officials and citizens is of high quality (i.e., includes accurate
scientific analysis, expert agency comments, and public scrutiny);
! foster better decision making by helping public officials make
decisions based on an understanding of the environmental
consequences of their actions; and
! facilitate public involvement in the federal decision-making
process.36
CEQ’s regulations, drawn in large part from its guidelines, included several
noteworthy clarifications and amplifications to requirements specified in the law.
For example, the regulations
! required agencies to include a project-“scoping” process to identify
important environmental issues and related review requirements
before writing the EIS;
! required EISs to be prepared in multiple stages (draft and final), with
supplemental EISs required under specific circumstances;
! provided criteria for determining the significance of impacts and
what constituted a “major federal action”;
! defined and specified the roles of “lead agencies” (those responsible
for preparing the NEPA documentation) and “cooperating agencies”
31 Dinah Bear (CEQ General Counsel), “NEPA at 19: A Primer on an ‘Old’ Law with
Solutions to New Problems,” 19 Environmental Law Reporter 10060, p. 10062, February
1989.
32 Dinah Bear, “The National Environmental Policy Act: Its Origins and Evolutions,”
Natural Resources & Environment, vol. 10, no. 2, fall 1995, p. 70.
33 Executive Order 11991, Relating to Protection and Enhancement of Environmental
Quality, signed by President Carter, May 24, 1977, 42 Federal Register 26967.
34 43 Federal Register 55978, November 28, 1978; 40 C.F.R. §§ 1500-1508.
35 Council on Environmental Quality, Ninth Annual Report of the Council on Environmental
Quality, December 1978, pp. 396-399; and at 40 C.F.R. §§ 1500.4 and 1500.5.
36 40 C.F.R. § 1500.1.
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(agencies that participate in or contribute to the preparation of the
NEPA documentation);
! allowed lead agencies to set time limits on milestones in the NEPA
process and page limits on documentation;
! specified a dispute resolution process between lead agencies and
EPA (required originally under Section 309 of the Clean Air Act),
if EPA determined the EIS to be “unsatisfactory”;
! specified environmental review procedures and documents
applicable to projects that had uncertain or insignificant
environmental impacts;
! specified how an agency was to involve the public in the NEPA
process;
! required, for actions involving an EIS, that a public record of
decision be published when a final agency decision is made; and
! provided for alternative compliance procedures in the event of an
emergency.
The CEQ regulations were intended to be generic in nature. Each federal
agency was required to develop its own NEPA procedures that would be specific to
typical classes of actions undertaken by that agency.37 Separately, CEQ regulations
directed federal agencies to review their existing policies, procedures, and regulations
to ensure that they were in full compliance with the intent of NEPA.38
CEQ’s regulations are unique in several aspects. For example, they were issued
eight years after enactment of the law they implement. As a result, they reflect not
only CEQ’s interpretation of NEPA, but also the initial interpretation of the courts
and the administrative experiences of other agencies. Also, the CEQ regulations
incorporated provisions of another law — Section 309 of the Clean Air Act (i.e.,
procedures for referring projects to CEQ for dispute resolution when EPA has found
them to be environmentally unsatisfactory). Finally, although CEQ has oversight of
the implementation of its regulations, it is not authorized to enforce them.
In addition to promulgating regulations in 1978, CEQ has provided support and
informal guidance to federal agencies implementing NEPA’s requirements. For
example, in 1981, CEQ issued its “Forty Most Asked Questions Concerning CEQ’s
NEPA Regulations.” Answers to those questions deal with topics such as how to
determine the range of alternatives considered in an EIS, how environmental
documents should be made public, and the scope of mitigation measures required to
be discussed. CEQ also has published memoranda regarding specific topics related
to NEPA compliance.39
37 40 C.F.R. § 1507.3.
38 40 C.F.R. § 1500.6.
39 The “Forty Most Asked Questions” and other CEQ guidance are available online at
[http://ceq.eh.doe.gov/nepa/nepanet.htm].
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Determining When NEPA Applies
Under NEPA, an environmental impact statement must be prepared for “every
recommendation or report on proposals for legislation and other major federal actions
significantly affecting the quality of the human environment.” Interpretation of each
element of this phrase has been the subject of myriad court decisions and guidance
from CEQ. Two terms of particular relevance are “federal action” and
“significantly.” In determining whether and how NEPA will apply to an action, it is
necessary to determine whether an action is in fact a federal one and, if so, whether
its environmental impacts will be significant.
Federal Actions Subject to NEPA. To determine whether NEPA applies
to an action, it is first necessary to determine whether it is a federal one.40 “Federal”
actions include those that are potentially subject to federal control and responsibility.
Such actions include “projects and programs entirely or partly funded, assisted,
conducted, regulated, or approved by federal agencies.”41 Specifically, federal
agency compliance with NEPA may be required for actions that require a federal
permit or other regulatory decision to proceed.42
In many cases, it is immediately apparent that a project or program is federal (as
opposed to a strictly private or state action43). However, in some instances, such as
private actions in which a federal agency has some small involvement, a
determination is not as clear.44 CEQ regulations specify categories of actions within
which NEPA-covered federal actions tend to fall (see Table 1).
40 The CEQ regulations, at 40 C.F.R. § 1508.18, specify that the term “major” in the phrase
“major federal action” reinforces but does not have meaning independent of “significantly.”
This discussion focuses on criteria used to determine whether the level of federal agency
involvement in an action is such that the action is federalized and, when it is, the categories
of action subject to NEPA. Criteria used to determine if environmental impacts are
significant are discussed in “Determining the Significance of a Federal Action” section,
below.
41 40 C.F.R. § 1508.18(a).
42 40 C.F.R. § 1508.18(b)(4). Further, the term “federal agency” is defined as all agencies
of the federal government but does not mean the Congress, the Judiciary, or the President
(40 C.F.R. § 1508.12).
43 Approximately 16 states, and some municipalities and tribal governments, have enacted
their own environmental policy acts sometimes referred to as “little NEPAs.” For more
information, see the State Environmental Resource Center (SERC) Web page regarding
State Environmental Quality Acts at [http://serc.com/SEQA/pkg_frameset.html].
44 Determining the level of federal involvement that would federalize a private project is
becoming more relevant as state and local governments are increasingly turning to public-
private partnerships to fill gaps in federal funding for needed projects (e.g., surface
transportation projects, school maintenance, and construction projects).
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Table 1. Typical Categories of “Federal Actions”
Subject to NEPA
Category
of action
Examples
Site-
Construction or management activities located in a defined geographic
specific
area; actions requiring federal licensing, permitting, or other regulatory
projects
decision; activity requiring federal assistance or funding.
Adoption
Projects that may include groups of concerted actions to implement a
of
specific policy or plan; systematic and connected agency decisions
programs
allocating agency resources to implement a specific statutory program or
executive directive.
Adoption
May include official documents prepared or approved by federal agencies
of plans
which guide or prescribe alternative uses of federal resources, upon which
future agency actions will be based (agencies may argue that certain plans
do not fit the definition of an “action” in accordance with NEPA).
Adoption
May include the adoption of official policy, such as rules, regulations, and
of policy
interpretations adopted pursuant to the Administrative Procedure Act (5
U.S.C. § 551 et seq.); treaties and international conventions or agreements
(also, Executive Order 12114, Environmental Effects Abroad of Major
Federal Actions, specifies environmental review requirements for actions
taken outside the United States); or formal documents establishing an
agency’s policies that will result in or substantially alter agency programs.
Source: 40 C.F.R. § 1508.18(b).
A broad NEPA review may be done for the adoption of programs, plans, or
policies. Such a review would most likely be followed by a site-specific review for
any subsequently implemented projects. This process of producing a broad
statement, followed by a more narrowly focused NEPA analysis is referred to as
“tiering.”45 In such a project, the NEPA documentation need only summarize the
issues discussed in the broader document and incorporate previous discussions by
reference. Such a process is recommended to avoid repetitive discussion of the same
issues.
Table 2 lists examples of projects at selected agencies that may fall into one of
the categories of actions that require environmental review under NEPA.
45 The tiering process is discussed at 40 C.F.R. § 1502.20; also, see answers to questions
24a-c regarding EISs required on policies, plans, or programs in CEQ’s “Forty Most Asked
Questions.”
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Table 2. Selected Examples of Agency Actions Requiring
Environmental Review Under NEPA
Agency
Project types
Department of
Forest Service — Private timber, grazing, or mining operations on
Agriculture
Forest Service land.
Department of
Army Corps of Engineers — Flood control projects, ecosystem
Defense
restoration projects, water resources projects, or projects requiring
a federal permit for dredge and fill operations.
Department of
Approval of dam construction, the process of siting of oil and gas
Energy
pipelines on federal land, the process of siting power transmission
lines on federal land, and research operations.
Department of
Construction of affordable housing projects; certain projects that
Housing and
would remove, demolish, convert, or substantially rehabilitate
Urban
existing housing units; or the extension of urban development grants
Development
or block grant programs.
Department of
Bureau of Land Management — Private mining operations on
the Interior
federal land; and oil and gas drilling operations on federal lands.
Department of
Federal Highway Administration — Highway and bridge
Transportation
construction, maintenance, and repair.
Federal Aviation Administration — Airport construction and
expansion.
EPA
Issuance of permits under the National Pollutant Discharge
Elimination System (NPDES).
Source: Congressional Research Service (CRS) review of individual agency actions.
Although such application is rare, NEPA also is intended to apply to agency
proposals for federal legislation. CEQ’s definition of legislation includes “a bill or
legislative proposal to Congress developed by or with the significant cooperation and
support of a Federal agency....”46 This definition does not include requests for
appropriations. The test for “significant cooperation” is whether the proposal is
predominantly that of the agency rather than another source. Only the agency with
primary responsibility for the subject matter involved is required to prepare a
legislative EIS.
Determining the Significance of a Federal Action. The requirement to
prepare an EIS depends on whether the federal action will have impacts “significantly
affecting the quality of the human environment.” In the years after NEPA was
enacted, a question that was often disputed between federal agencies and third
parties, and ultimately decided by the courts, was whether a given federal action had
a “significant” impact. Most federal actions have some impact on the environment.
46 40 C.F.R. § 1508.17.
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Determining the degree of impact is necessary to determine how to comply with
NEPA’s procedural requirements.
CEQ regulations do not list specific types of projects that have significant
environmental impacts or definitively define “significantly.” Instead, the regulations
require agencies to determine the significance of a project’s impacts on a case-by-
case basis, based on its context and intensity.47
Determining the context of a project involves analyzing the significance of its
impacts to society as a whole, an affected region, affected interests, or the locality.48
A site-specific project may require analysis of the local significance of the project,
whereas a programmatic action may have nationwide significance. The degree of
significance may depend on factors such as the location and scope of the project. For
example, the impacts of a site-specific project on 1 acre of a 2,000-acre wetland may
be insignificant compared with a project that affects 1 acre of a 2-acre wetland.
Intensity refers to the severity of a project’s impacts. Factors used to assess an
impact’s intensity must be determined on a case-by-case basis. However, CEQ
specifies the following minimum factors that must be evaluated:
! Environmental impacts that may be beneficial and adverse.
! The degree to which the proposed action affects public health or
safety.
! Unique characteristics of the geographical area, such as proximity to
historic or cultural resources, park lands, prime farmlands, wetlands,
wild and scenic rivers, or ecologically critical areas.
! The degree to which the effects on the quality of the human
environment are likely to be highly controversial (in this context,
“controversy” relates only to the interpretation of the environmental
effects of a project — not to the potential controversy or
unpopularity of the project as a whole).
! The degree to which the possible effects on the human environment
are highly uncertain or involve unique or unknown risks.
! The degree to which the action may establish a precedent for future
actions with significant effects.
! Whether the action is related to other actions with individually
insignificant but cumulatively significant impacts.
! The degree to which the action may adversely affect resources listed
in, or eligible for, the National Register of Historic Places or may
cause loss or destruction of significant scientific, cultural, or
historical resources.
! The degree to which the action may adversely affect an endangered
or threatened species or its habitat.
47 40 C.F.R. § 1508.27.
48 40 C.F.R. § 1508.27(a).
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! Whether the action threatens a violation of federal, state, or local law
or requirements imposed for the protection of the environment.49
Individual agencies may consider additional factors based on environmental
impacts common to the types of projects pursued by that agency. Further, to
adequately determine an impact’s intensity, input from other agencies may be needed.
For example, if a highway will cut across prime farmland, the Department of
Transportation (DOT) may need assistance from the U.S. Department of Agriculture
(USDA) to determine the intensity of the project’s impacts.
Because degrees of impact must be evaluated to determine project significance,
such an evaluation may require subjective judgements. Therefore, a clear
administrative record is generally considered necessary to demonstrate that an agency
appropriately determined the significance of a project’s impacts.
Overview of the NEPA Process
The NEPA process includes the steps a federal agency must take to document
consideration given to the significant environmental impacts of a proposed action.
For some actions, it may not be readily apparent that environmental impacts will be
significant. Some projects clearly have little or no significant impact, but they still
require an agency to demonstrate that the level of impacts was considered. To
account for this variability, CEQ regulations establish the following three classes of
action, which determine how compliance with NEPA analysis is documented:
! Actions Requiring an EIS — When it is known that the action will
have a significant environmental impact.
! Actions Requiring an Environmental Assessment (EA) — When the
significance of environmental impacts is uncertain and must be
determined.
! Actions that are Categorically Excluded — Those which normally
do not individually or cumulatively have a significant effect on the
human environment.
The requirement to produce an EIS is probably the most familiar element of
NEPA compliance. However, actions requiring an EIS account for a small
percentage of all federal actions proposed in a given year. For example, in 2006,
542 EISs were filed with EPA (this total includes draft, final, and supplemental
EISs).50 CEQ estimates that the vast majority of federal actions require an EA or are
categorically excluded from the requirement to prepare an EA or EIS.
Determining the total number of federal actions subject to NEPA is difficult, as
most agencies track only the number of actions requiring an EIS. Also, as indicated
in the figures above, agencies track the total draft, final, and supplemental EISs filed
in a given year, not the total number of individual federal actions requiring an EIS in
49 40 C.F.R. § 1508.27(b).
50 CEQ’s “Number of EIS filed with EPA by Federal Agencies,” available at
[http://ceq.eh.doe.gov/nepa/nepanet.htm].
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a given year. One agency that does track all projects is DOT’s Federal Highway
Administration (FHWA). According to FHWA, in 2005, 7% of all highway projects
required an EIS, 9% required an EA, and 84% were classified as categorically
excluded. Projects requiring an EIS or EA accounted for 13% and 5.5% of the funds
allocated by FHWA, respectively. Projects classified as categorical exclusions
accounted for 81.5% of FHWA funds.51
Environmental Impact Statements. As soon as practicable after its
decision to prepare an EIS, the agency preparing it (the “lead agency”) is required to
publish a notice of intent (NOI) in the Federal Register.52 The NOI acts as the formal
announcement of the project to the public and to interested federal, state, tribal, and
local agencies.
As soon as possible after, or in conjunction with, the determination that an EIS
is needed, the agency is required to determine the scope of the project. During the
scoping process the “lead agency” must
! identify and invite the participation of affected parties, including
federal, state, or local agencies or Indian tribes; proponents of the
actions; and other interested persons;
! identify significant issues to be analyzed in depth in the EIS;
! identify and eliminate issues that are not significant or have been
covered by prior environmental review from detailed study;
! allocate assignments for preparing the EIS to relevant agencies; and
! identify other environmental review and consultation requirements
so that analyses and studies required other under federal, state, local
or tribal laws may be prepared concurrently, rather than sequentially,
with the EIS.53
During the scoping process, the lead agency may set time and page limits for an
individual EIS. During the scoping process, the agency should determine any
environmental laws, regulations, or executive orders, in addition to NEPA, that will
apply to the project. For example, the agency should determine early in the project
whether any property of historical significance will be affected, which may require
compliance with the National Historic Preservation Act.
Once the scope of the action has been determined, EIS preparation can begin.
Preparation is done in two stages, resulting in a draft and a final EIS.54 The draft EIS
should be prepared in accordance with the scope of the project and, to the fullest
extent possible, meet requirements of § 102(2)(C) of NEPA. The final EIS should
respond to any participating agency comments and address any inadequacies in the
draft EIS. A supplemental EIS may be required in some instances. A summary of
51 See “FHWA Projects by Class of Action,” on FHWA’s “Streamlining/Stewardship”
Website, available at [http://environment.fhwa.dot.gov/strmlng/projectgraphs.asp].
52 40 C.F.R. § 1508.22.
53 40 C.F.R. § 1501.7.
54 40 C.F.R. § 1502.9.
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the components of an EIS, as required under CEQ’s regulations, is provided in Table
3.
Table 3. Components of an EIS
EIS Component
Description
Purpose and
A brief statement, developed by the lead agency, specifying the
Need Statement
underlying purpose of a project and the need to which the agency is
responding (40 C.F.R. § 1502.13).
Alternatives
A discussion of the range of alternatives, including the proposed
action, that will meet the project’s purpose and need. The discussion
should explore and objectively evaluate all “reasonable”
alternatives, and for alternatives which were eliminated from
detailed study, a brief discussion of the reasons for their having been
eliminated. A “no action” alternative may also be required to
establish a baseline against which other alternatives may be
compared (40 C.F.R. § 1502.14).
Affected
A succinct description of the environment of the area(s) to be
Environment
affected by the alternatives under consideration. For example, the
affected environment may include wetlands, prime farmland, urban
areas, historic sites, or endangered species habitat (40 C.F.R. §
1502.15).
Environmental
An analysis of impacts of each alternative on the affected
Consequences
environment, including a discussion of the probable beneficial and
adverse social, economic, and environmental effects of each
alternative. This section must also include, where applicable, a
discussion of both the direct and indirect effects of each alternative
and the significance of those effects; a description of the measures
proposed to mitigate adverse impacts; and methods of compliance
with any applicable legal requirements may (e.g., whether and how
compliance with the Endangered Species Act will be accomplished
if endangered species habitat is impacted) (40 C.F.R. § 1502.16).
List of Preparers
List of names and qualifications of individuals responsible for
preparing the EIS (40 C.F.R. § 1502.17).
Appendix
Any material prepared in connection with the EIS. Such materials
normally consist of material which substantiates any analysis
fundamental to the EIS (40 C.F.R. § 1502.18).
Source: CRS review of requirements in 40 C.F.R. § 1502.
The action’s purpose and need statement is the foundation on which subsequent
sections of the EIS are built. No hard-and-fast regulatory definition of “purpose and
need” exists. However, as it has been interpreted, the statement cannot be so narrow
that it effectively defines competing “reasonable alternatives” out of consideration.
The “purpose” of an action may be a discussion of the goals and objective of an
action. The “need” may be a discussion of existing conditions that call for some
improvement.
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The goals defined in the purpose and need evaluation facilitate the development
of viable project alternatives. CEQ regulations refer to the alternatives section of the
EIS as the “heart” of the document.55 Alternatives that must be considered include
those that are practical and feasible from a technical, economic, and common-sense
standpoint, rather than simply desirable from the standpoint of the agency or a
potentially affected stakeholder.56 Large, complex projects may have a large number
of reasonable alternatives. In this case, CEQ suggests that only a representative
number of the most reasonable examples, covering the full range of alternatives,
should be presented.57
Once the final EIS is approved and the agency decides to take action, the lead
agency must prepare a public record of decision (ROD). CEQ regulations specify
that the ROD must include a statement of the final decision, all alternatives
considered by the agency in reaching its decision, and whether all practicable means
to avoid or minimize environmental harm from the selected alternative have been
adopted and, if not, why they were not.58
Generally, once the ROD has been issued, an agency’s action may proceed (as
long as other statutory requirements are met). In addition to the EIS and the ROD,
the final procedural record of the NEPA process may include, but is not limited to,
planning documents, notices, scoping hearings, documents supporting findings in the
EIS, public comments, and agency responses.59
Environmental Assessments. If an agency is uncertain whether an action’s
impacts on the environment will be significant, it usually prepares an environmental
assessment (EA). An EA is carried out to clarify issues and determine the extent of
an action’s environmental effects. CEQ regulations define an EA as a concise public
document that (1) provides sufficient evidence and analysis for determining whether
to prepare an EIS or a finding of no significant impact (FONSI), (2) aids agency
compliance with NEPA when no EIS is required, and (3) facilitates preparation of an
EIS when one is necessary.60
The CEQ regulations require no standard format for EAs; however, the
regulations do require agencies to include a brief discussion of the need for the
proposal, alternatives, impacts of the proposal and alternatives, and a list of agencies
55 40 C.F.R. § 1502.14.
56 See answer to question 2a regarding Alternatives Outside the Capability of Applicant or
Jurisdiction of Agency in CEQ’s guidance document “Forty Most Asked Questions.”
57 Ibid., answer to question 1b regarding how many alternatives have to be discussed when
there is an infinite number of possible alternatives.
58 40 C.F.R. § 1505.2.
59 Copies of this documentation are generally available from the lead agency. Often,
particularly for EISs, NEPA documentation is available on an agency’s website.
60 40 C.F.R. § 1508.9(a).
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and individuals consulted.61 Individual agency regulations and guidance may include
more specific requirements. Some agencies suggest that the process for developing
an EA should be similar to developing an EIS. For example, the applicant should
consult interested agencies to scope the project to determine the potential for social,
economic, or environmental impacts; briefly discuss the project’s purpose and need;
identify project alternatives and measures to mitigate adverse impacts; and identify
any other environmental review requirements applicable to the project (e.g.,
permitting requirements under Section 404 of the Clean Water Act). Public
participation in the EA process is left largely to the discretion of the lead agency.
If at any time during preparation of the EA, a project’s impacts are determined
to be significant, EIS preparation should begin. If the impacts are determined not to
be significant, the lead agency must prepare a FONSI. The FONSI serves as the
agency’s administrative record in support of its decision regarding a project’s impact.
The FONSI also must be available to the public.62
Categorical Exclusions. If a project is of a type or in a category known to
have no significant environmental impacts, it is categorically excluded from the
requirement to prepare and EA or EIS. Individual agencies are required to
specifically list, in their respective NEPA regulations, those projects that are likely
to be considered categorical exclusions (CEs).63 For example, DOT has identified
the construction of bicycle and pedestrian lanes, landscaping, and the installation of
traffic signals as actions that would generally be classified as categorical exclusions.64
Whether or what types of documentation may be required to demonstrate that
a project is categorically excluded will depend on whether the project involves
extraordinary circumstances that may cause a normally excluded action to have a
significant environmental effect.65 An individual agency’s NEPA requirements may
specify criteria under which otherwise excluded actions may require documentation
to prove that the CE determination is appropriate.
Although categorically excluded projects do not have significant environmental
impacts, an agency may require a certain level of documentation to prove that the CE
determination is appropriate. Also, the fact that a project does not have a significant
impact, as defined under NEPA, does not mean that it will not trigger statutory
requirements of other environmental laws. For example, if historical sites,
endangered species habitats, wetlands, or properties in minority neighborhoods, to
name a few, are affected by a proposed federal action, compliance with related
environmental laws, in addition to NEPA, may be required.
A simplified overview of the NEPA process is illustrated in Figure 1.
61 40 C.F.R. § 1508.9(b).
62 40 C.F.R. § 1501.4(e)(1).
63 40 C.F.R. § 1507.3.
64 23 C.F.R. § 771.117.
65 40 C.F.R. § 1508.4.
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Figure 1. Overview of the NEPA Process
Source: 40 C.F.R. §§ 1501-1506.
a. If an action is not specifically identified as a categorical exclusion in the respective agency’s NEPA
regulations, it may still require an environmental assessment to confirm that its impacts are not
significant. An agency may also choose to prepare an environmental assessment, even though
it is not required to do so, to aid in its compliance with NEPA.
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Agency Participation in the NEPA Process
Federal actions to which NEPA applies involve the participation of a “lead
agency” and “cooperating agencies.” As stated previously, the lead agency is the
federal agency that takes responsibility for preparing the NEPA documentation.66
State or local agencies may act, with the federal lead agency, as joint lead agencies.
The project applicant, such as a state or local agency, may initially develop
substantive portions of the environmental document; however, the lead agency is
responsible for its scope and overall content. A cooperating agency is any federal
agency, other than a lead agency, that has jurisdiction by law or special expertise
regarding any environmental impact involved in a proposal.67 A tribal, state, or local
agency may also be a cooperating agency. Table 4 lists selected statutes that may
apply to a given federal action and the corresponding agency that could subsequently
be required to participate in the NEPA process.
Table 4. Selected Federal Statutes and Potential Corresponding
Key Cooperating Agencies
Statute
Potential cooperating agency
National Historic
Advisory Council on Historic Preservation and/or state or
Preservation Act
tribal historic preservation officer.
Endangered Species Act
The Department of the Interior’s U.S. Fish and Wildlife
Service and/or the Department of Commerce’s National
Marine Fisheries Service.
Clean Water Act
The Army Corps of Engineers and/or EPA.
Wild and Scenic Rivers
The agency responsible for managing the listed or study
Act
river (e.g., the National Park Service, U.S. Fish and Wildlife
Service, Bureau of Land Management, or Forest Service).
Farmland Protection
The Natural Resources Conservation Service of USDA.
Policy Act
Source: Table prepared by CR and based on the likely applicability of selected federal statutes.
Note: Tribal, state, and local agencies may also be included among those required to participate in
a given EIS.
Responsibilities of the Lead and Cooperating Agencies. At the
request of the lead agency, the cooperating agency is required to assume
responsibility for developing information and preparing environmental analyses,
including portions of the EIS related to its special expertise. Such a role may be set
out in a memorandum of understanding or agreement between the agencies. A
cooperating agency may be excused from some or all of these responsibilities if
precluded by other program requirements.
66 40 C.F.R. § 1508.16.
67 40 C.F.R. § 1508.5.
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Some projects have involved disagreements regarding the authority of and extent
to which coordinating agencies should be involved in the NEPA process. For
example, some stakeholders have expressed confusion regarding the degree to which
a coordinating agency has the right to influence the development of certain elements
of an EIS. In 2003, this issue of agency authority was the subject of correspondence
between Transportation Secretary Norman Mineta and CEQ Chairman James
Connaughton. Secretary Mineta asked for clarification regarding the role of lead and
cooperating agencies with regard to developing purpose and need statements.68
Secretary Mineta referred to the sometimes extended interagency debates over
purpose and need statements as a cause of delay in highway project development. In
his response, Chairman Connaughton referred to CEQ regulations specifying that the
lead agency has the authority and responsibility to define a project’s purpose and
need. Further, Chairman Connaughton referenced previous federal court decisions
giving deference to the lead agency in determining a project’s purpose and need.
Chairman Connaughton’s letter also quotes CEQ’s regulations, citing the lead
agency’s “responsibilities throughout the NEPA process for the ‘scope, objectivity,
and content of the entire statement or of any other responsibility’ under NEPA.”
Addressing Agency Comments. Before completing an EIS, the lead
agency is required to consult with and obtain comments from cooperating agencies
regarding any environmental impact involved in the proposed action.69 The CEQ
regulations specify requirements for inviting and responding to comments on the
draft EIS.70 In addition to the cooperating agencies, which must comment, the lead
agency is required to request comments from appropriate state, local, or tribal
agencies; the public, particularly those persons or organizations who may be
interested in or affected by the action (see further discussion under the
“Demonstrating Public Involvement” section, below); any agency that has requested
to receive EISs on similar actions; and the applicant (if there is one).71
If a lead agency receives comments on a NEPA document, the agency is required
to assess and consider those comments and respond in one or more of the following
ways:
! Modify proposed alternatives, including the proposed action.
! Develop and evaluate alternatives not previously considered.
! Supplement, improve, or modify its analyses.
! Make factual corrections in the EIS.
! Explain why the comments do not warrant further response from the
lead agency, citing the sources, authorities, or reasons that support
68 Text of Secretary Mineta’s May 6, 2003 letter, and Chairman Connaughton’s May 12,
2003 response, are available at [http://www.environment.fhwa.dot.gov/guidebook/
Ginterim.asp].
69 42 U.S.C. § 4332(2)(C).
70 40 C.F.R. § 1503.
71 40 C.F.R. § 1503.1.
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the agency’s position and, if appropriate, indicate circumstances that
would trigger agency reappraisal or further response.72
Under CEQ regulations, lead agencies are required to invite comments on a draft
EIS, cooperating agencies have a duty to comment on it, and lead agencies are
required to respond to those comments. As illustrated in the choices listed above, the
lead agency is not precluded from moving forward with a project if it sufficiently
addresses those comments. However, if negative comments are received, to avoid
a potential legal challenge after the project has reached an advanced stage of
development, the lead agency is well-served to resolve the issue.
EPA’s Unique Role in the NEPA Process. Independent of its potential
to participate as a lead or cooperating agency,73 EPA has two distinct roles in the
NEPA process. The first regards its duty, under Section 309 of the Clean Air Act,
to review and comment publicly on the environmental impacts of proposed federal
activities, including those for which an EIS is prepared. After conducting its review,
EPA must rate the adequacy of the EIS and the environmental impact of the action.74
The EIS may be rated “adequate,” “needs more information,” or “inadequate.” The
lead agency is required to respond appropriately, depending on EPA’s rating. With
regard to rating the environmental impacts of an action, EPA would rate a project in
one of the following four ways: lack of objections, environmental concerns,
environmental objections, or environmentally unsatisfactory. If it determines that the
action is environmentally unsatisfactory, EPA is required to refer the matter to CEQ
for dispute resolution.75 However, such referral should be made only after concerted,
timely, but unsuccessful attempts to resolve differences with the lead agency.76
EPA’s second duty is an administrative one, in which it carries out the
operational duties associated with the EIS filing process. In 1978, these duties were
transferred to EPA by CEQ in accordance with terms of a Memorandum of
Agreement (MOA).77 Under the MOA, EPA’s Office of Federal Activities is
designated the official recipient of all EISs prepared by federal agencies. EPA
maintains a national EIS filing system. By maintaining the system, EPA facilitates
72 40 C.F.R. §1503.4.
73 NEPA documentation is required of EPA for research and development activities, facility
construction, wastewater treatment plant construction under the Clean Water Act,
EPA-issued National Pollutant Discharge Elimination System (NPDES) permits, and certain
projects funded through EPA annual appropriations acts. For more information about EPA’s
requirements with regard to NEPA compliance, see [http://www.epa.gov/compliance/nepa/
epacompliance/index.html].
74 See an explanation of EPA’s “Environmental Impact Statement (EIS) Rating System
Criteria” at [http://www.epa.gov/compliance/nepa/comments/ratings.html].
75 40 C.F.R. §1504.1.
76 40 C.F.R. §1504.2.
77 Although the MOA is not readily available, reference to it and the allocation of duties
between EPA and CEQ is discussed in a March 7, 1989, Federal Register notice available
on EPA’s Compliance and Enforcement website under “EIS Filing System,” at
[http://www.epa.gov/compliance/resources/policies/nepa/index.html].
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public access to EISs by publishing weekly notices in the Federal Register of EISs
available for public review, along with summaries of EPA’s comments.
Demonstrating Public Involvement
As the law has been interpreted, one of the primary goals of NEPA is to give the
public a meaningful opportunity to learn about and comment on the proposed actions
of the federal government before decisions are made and actions are taken. To meet
this goal, CEQ’s regulations require agencies to encourage and facilitate public
involvement in decisions that significantly affect the quality of the human
environment (i.e., projects that require an EIS).78 Specifically, agencies are required
to provide public notice of NEPA-related hearings, public meetings, and the
availability of environmental documents so as to inform public stakeholders that may
be interested in or affected by a proposed action.79 Documentation related to the
public’s participation in the NEPA process (e.g., public comments or hearings
transcripts) must be included in the final EIS.
As mentioned above, the lead agency must seek and respond to public
comments. Public stakeholders likely to comment on federal actions will vary
according to the action. They may include individuals or groups expected to benefit
from or be adversely affected by the project, or special interest groups with concerns
about the project’s environmental impacts. For example, a road-widening project
may have an impact on adjacent homes or businesses. Such a project may elicit
comments from the local business community (e.g., individual businesses, the
Chamber of Commerce, or local development organizations) and area home owners.
A project with impacts on sensitive environmental resources, such as wetlands or
endangered species, may generate comments from environmental interest groups.
If stakeholders have concerns about a project’s impacts, their comments may be
directed at virtually any element of that project, the NEPA process, or related
documentation. If stakeholder comments are not addressed sufficiently, stakeholders
may may respond by filing suit. To avoid conflict after a project has reached an
advanced stage of development, CEQ recommends that continuous contact with
nonagency stakeholders be maintained throughout the decision-making process —
from the earliest project planning stages to the selection of a particular alternative,
including the intervening stages to define purpose and need and to develop a range
of potential alternatives. The need for such contact was illustrated in a 1997 CEQ
study. Study results found that one element of the NEPA process critical to effective
and efficient implementation was “... the extent to which an agency takes into
account the views of the surrounding community and other interested members of the
public during its planning and decisionmaking process.”80
78 40 C.F.R. § 1500.2(d).
79 40 C.F.R. § 1506.6.
80 Council on Environmental Quality, The National Environmental Policy Act: A Study of
Its Effectiveness After Twenty-five Years, January 1997, p. ix.
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CEQ regulations specify public involvement requirements only for federal
actions requiring an EIS. Agencies may devise their own policy regarding public
involvement in the preparation of an EA or in making a categorical exclusion
determination. (For more information, see CRS Report RL32436, Public
Participation in the Management of Forest Service and Bureau of Land Management
Lands: Overview and Recent Changes, by Pamela Baldwin.)
The Use of NEPA as an “Umbrella” Statute
Large, complex actions, such as bridge and highway construction, mining
operations, or oil and gas development on public lands, may require compliance with
literally dozens of federal, state, tribal, and local laws. Depending on the resources
present at a project site, compliance with various categories of legal requirements
may apply to a given federal action, as illustrated in Table 5.
Table 5. Categories of Legal Requirements Potentially
Applicable to Federal Actions
Category of laws
Selected potential corresponding authorities
Laws intended to
•
Clean Air Act
protect physical
•
Clean Water Act
resources
•
Pollution Prevention Act
•
Safe Drinking Water Act
Laws intended to
•
National Historic Preservation Act
protect cultural
•
Archaeological and Historical Preservation Act
resources
•
Historic Sites and Buildings Act
Laws intended to
•
Endangered Species Act
protect natural
•
Marine Mammal Protection Act
resources
•
Fish and Wildlife Coordination Act
•
Migratory Bird Treaty Act
Laws intended to
•
Emergency Planning and Community Right to Know Act
minimize impacts to
•
Farmland Protection Policy Act
communities or
•
Title VI of the Civil Rights Act
individuals
Special status land
•
Wild and Scenic Rivers Act
use laws
•
The Coastal Zone Management Act
•
Wilderness Act
Source: Table prepared by CRS and based on a review of selected federal actions.
Note: Tribal, state, or local laws may also be applicable to a given impacted resource.
To integrate the compliance process and avoid duplication of effort, NEPA
regulations specify that, to the fullest extent possible, agencies must prepare the EIS
concurrently with any environmental requirements.81 The EIS must list any federal
permits, licenses, and other entitlements required to implement the proposed project.
81 40 C.F.R. § 1502.25.
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In this capacity, NEPA functions as an “umbrella” statute; any study, review, or
consultation required by any other law that is related to the environment should be
conducted within the framework of the NEPA process.
NEPA forms the framework to coordinate and demonstrate compliance with
these requirements. NEPA itself does not require compliance with them.
Theoretically, if the requirement to comply with NEPA were removed, compliance
with each applicable law would still be required. The use of NEPA as an umbrella
statute can lead to confusion in this regard. For example, consider a project
alternative that requires compliance with the Endangered Species Act (ESA). One
required element of the EIS may include a demonstration that, among other potential
requirements, a biological assessment be prepared in compliance with the ESA. The
requirement to comply with the ESA, including the involvement of the appropriate
agency with jurisdiction over compliance, would simply be identified within the
framework of the NEPA process, not required by NEPA.
NEPA Implementation and Project Delays
Stakeholders such as state and local project sponsors and industry
representatives with an interest in the implementation of a federal action sometimes
charge that NEPA implementation is inefficient and overly time-consuming, leading
to what they perceive as unnecessary delays in needed government actions. Some
agency representatives feel that the NEPA process, when implemented as required
by the CEQ regulations, actually facilitates a more efficiently executed project.
Environmental organizations look at the NEPA process as a necessary step in
ensuring that the public gets a voice in the federal decision-making process and that
expediting that process is not necessarily in the best interest of the public or the
environment. Further, they argue that blaming the environmental compliance process
for project delays is misplaced. One argument is that federal projects may be delayed
because resource agencies, required by law to participate in the compliance process,
are overburdened and not sufficiently funded, staffed, or equipped to meet the
demand.
Causes of Project Delays Attributed to the NEPA Process. Delays
attributed to the NEPA process fall into two broad categories — those related to the
time it takes to complete required documentation and delays resulting from NEPA-
related litigation.
In the past, particularly in the years after NEPA was implemented, the
preparation of NEPA documentation played a role in delaying individual federal
actions. However, there is little data available to demonstrate that NEPA currently
plays a significant role in delaying federal actions. This lack of data is attributable
to the fact that other than the Department of Energy and, very recently, DOT, federal
agencies do not routinely maintain information on the time it takes to complete the
NEPA process. Therefore, gathering accurate data on how long it takes to prepare
NEPA documentation, and whether the NEPA process is directly the cause of project
delays, is difficult. For example, the preparation of NEPA documentation is
generally done concurrently with preliminary project design. If a project undergoes
specification changes, those alterations may necessitate modifications to the NEPA
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documentation. Consequently, the time to complete the NEPA process may be
extended.
The perception that NEPA results in extensive delays and additional costs to the
successful delivery of certain federal projects can be magnified when compliance
with multiple environmental laws and regulations is required (see “The Use of NEPA
as an ‘Umbrella’ Statute” section, above). The sometimes extensive reviews,
documentation, and analysis required by agencies such as the Army Corps of
Engineers, the U.S. Fish and Wildlife Service, the Coast Guard, and EPA, as well as
various state regulatory and review agencies, add further to the perception that
extensive delays are related to the NEPA process. Such “delays” may actually stem
from an agency’s need to complete a permit process or analyses required under
separate statutory authority (e.g., the Clean Water Act or Endangered Species Act),
over which the lead agency has no authority.
Litigation is probably the most often cited cause of NEPA-related project delays.
Although this may have been the case in the past, the total number of NEPA-related
cases in the past 10 years has been small (especially when compared with the total
number of federal actions requiring some environmental review under NEPA). For
example, in 2005, a total of 118 NEPA-related cases were filed. Of those, 43
resulted in an injunction. The majority of cases were filed against two agencies —
the USDA’s Forest Service (with 50 cases files) and the Department of the Interior’s
Bureau of Land Management (with 12 cases files).82 The main reason that plaintiffs
filed suit was because they believed that the EIS or EA was inadequate (e.g.,
information was incomplete or the document did not sufficiently analyze the
cumulative or indirect effects of an action).
NEPA litigation began to decline in the mid 1970s and has remained relatively
constant since the late 1980s.83 This trend may be due in part to improved agency
compliance with promulgated regulations and improved agency expertise in
preparing required documentation. However, another factor may be the decrease in
the number of federal actions funded by Congress that would be defined as “major
federal actions” under NEPA.84
Although litigation has decreased, agency concern regarding the threat of
litigation may still affect the NEPA process, particularly for complex or controversial
projects. In addition to CEQ regulations and an agency’s own regulations, a project
sponsor may be mindful of previous judicial interpretation when preparing NEPA
documentation in an attempt to prepare a “litigation-proof” EIS. CEQ has observed
that such an effort may lead to an increase in the cost and time needed to complete
82 See, Council on Environmental Quality “2005 Litigation Survey,” available at
[http://ceq.eh.doe.gov/nepa/nepanet.htm].
83 See Council on Environmental Quality, Environmental Quality: 25th Anniversary Report
(the CEQ 1994-95 Annual Report) 1996, p. 51, available at [http://ceq.eh.doe.gov/nepa/
reports/reports.htm], and Litigation Surveys for 2001 through 2005, available at
[http://ceq.eh.doe.gov/nepa/nepanet.htm].
84 Dinah Bear, “NEPA at 19,” 19 ELR 10062.
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NEPA documentation, but not necessarily an improvement in the quality of the
documents ultimately produced.85
Studies Into NEPA’s Effectiveness and Causes of Delays. In the past
10 years, numerous surveys and reports, conducted by both public agencies and
private organizations, have studied the effectiveness of the NEPA process. They
sought to determine issues such as how the NEPA process is implemented at
individual agencies, whether the NEPA process delays project implementation, and,
if so, how those delays may be addressed and NEPA more effectively implemented.
In 2004, a survey of staff from the Department of Defense, the Department of
the Interior, and the Forest Service sought to determine the degree to which the
NEPA process slowed decision making and delayed projects.86 The survey identified
the following primary reasons for project delays:
! Decision maker changes in the project.
! Court challenges to a project.
! Poor documentation that needed to be redone.
! Changes in or additions to project alternatives.
! Compliance requirements of the Endangered Species Act.
Depending on the agency responding, factors “outside the NEPA process” were
identified as the cause of delay between 68% and 84% of the time.
In 1997, CEQ published a study to determine NEPA’s effectiveness and methods
to improve its implementation.87 Study participants included individuals and
organizations that were knowledgeable about NEPA and could be characterized as
both supporters and critics of NEPA. Generally, participants felt that NEPA’s
enduring legacy was that it provided a framework for collaboration between federal
agencies and those who will bear the environmental, social, and economic impacts
of agency decisions. However, they also felt that NEPA often takes too long and
costs too much, agencies make decisions before hearing from the public, documents
are too long and technical for many people to use, and training for agency officials
is inadequate at times. Participants felt that critical elements of efficient NEPA
implementation included the extent to which an agency integrates NEPA’s goals into
its internal planning processes at an early stage and provides information to the
public.
85 Council on Environmental Quality, “NEPA Study of Effectiveness After Twenty-five
Years,” p. iii.
86 The survey, Fast Tracking NEPA Documents — Tools to Overcome Schedule Delays, was
conducted in 2003 and 2004 by Tetra Tech, Inc., for presentation at the 30th National
Defense Industrial Association Environmental and Energy Symposium and Exhibition. The
survey includes responses from agency staff identified as NEPA project managers, NEPA
resource authors, agency NEPA officers or reviews, or non-NEPA professionals, such as
engineers. Results are available at [http://www.dtic.mil/ndia/2004enviro/], under April 7,
2004, Session Nine.
87 Council on Environmental Quality, “NEPA Study of Effectiveness After Twenty-five
Years.”
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The study found that the extent to which the public is involved in the decision-
making process also influences the potential for litigation. The study also found that
some states, citizen groups, and businesses believe that certain EAs are prepared to
avoid public involvement (i.e., because public meetings are not always required for
EAs). The preparation of an EA, rather than an EIS, is reportedly the most common
source of conflict and litigation under NEPA.88 The study further found that
nongovernmental organizations (NGOs) and citizens viewed the NEPA process as
a one-way communication process, skeptical that their input was effectively
incorporated into agency decision making and hypothesizing that their involvement
was often solicited after decisions regarding actions and alternatives have already
been made. Citizens also reported being frustrated when they were treated as
adversaries rather than welcome participants in the NEPA process. Citizens reported
that they often felt overwhelmed by the resources available to project proponents and
agencies. As a consequence, litigation may be seen as the only means to affect
environmental decisions significantly.89
The most comprehensive recent study of the NEPA process was conducted by
CEQ’s NEPA Task Force. In 2002, CEQ formed the Task Force to review NEPA
implementation practices and procedures and to determine opportunities to improve
and modernize the process. The Task Force interviewed federal agencies; reviewed
public comments, literature, and case studies; and spoke with individuals and
representatives from state and local governments, tribes, and interest groups. In
2003, the Task Force released a report of its findings and recommendations.90
In compiling its research, the Task Force received more than 739 stakeholder
comments. Those comments reflected current issues and challenges to NEPA
implementation. With regard to delays in and the effectiveness of the NEPA process,
a large percentage of comments were directed at factors related to NEPA analysis and
documentation requirements and to the role and effects of litigation. According to
CEQ, many respondents expressed a belief that the general requirement to provide
adequate analysis had been taken to an extreme; that documents had become too
time-consuming and costly to produce; and that the resultant “analysis paralysis”
forestalled appropriate management of public lands and ultimately left the public
distrustful and disengaged. The stakeholders felt this was brought on by vague
requirements that were open to considerable interpretation and, therefore, an easy
target for litigation. Because the requirements were vague, those commenters further
felt that agencies were not sure how much analysis would be considered adequate by
the courts, resulting in pressure to produce more.
In contrast, other respondents felt the “analysis paralysis” scenario was a
misnomer. These respondents believed that agencies often predetermine the outcome
of the planning process, that they often fail to consider other reasonable alternatives,
88 Ibid., p. 19.
89 Ibid., p. 18.
90 “The NEPA Task Force Report to the Council on Environmental Quality: Modernizing
NEPA Implementation,” September 2003, and comments documented by the Task Force are
available at [http://ceq.eh.doe.gov/ntf/index.html].
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and that the analysis agencies provide is often inadequate to support the management
plan they propose. These commenters felt that the environmental effects of proposed
actions are often inadequately considered, particularly the cumulative effects; that
agencies rely on inadequate or outdated data; and that agency research is not held to
the same rigorous standards as research in other fields, particularly in terms of
scientific reference and peer review. Moreover, they felt that agencies are sometimes
intent on following a predetermined course of action and ignore concerns submitted
by the public. With regard to the role of litigation, a number of respondents felt that
litigation only results when agencies do not comply with NEPA requirements. Some
felt that it is only through litigation that concerned parties can get agencies to
recognize their concerns and give serious attention to the environmental effects of
their proposed actions.
One issue discussed in the Task Force report was challenges faced by agencies
with regard to budget, training, and staffing constraints. This issue is discussed in
more depth in a report, cited by the Task Force, that was prepared by the Natural
Resources Council (an environmental conservation organization). That report
surveyed 12 federal agencies to determine how they implemented the NEPA
process.91 Included in the report was a finding that, due to budget and staff
constraints, most agencies’ NEPA offices lack an ongoing national tracking system
to monitor the numbers and types of NEPA documents that their agency is preparing
or has completed. Also, the report found that agencies were unable to document their
NEPA workload, calculate average preparation times or costs, show trends in these
factors over time, or respond objectively to assertions that excessive time or money
is being spent on complying with NEPA’s requirements. The absence of such
information, the report asserted, leaves agencies in a weak position to respond
factually to or critically evaluate administrative or legislative proposals to
“streamline” the NEPA process (see discussion, below).
Efforts to Streamline the NEPA Process. Some Members of Congress
have expressed concerns that project delays are the result of inefficient interagency
coordination required for large, complex projects. As a result, a variety of recent
bills include provisions intended to streamline the NEPA process. Although not
defined in any legislative proposal, the term “streamlining” is broadly used to
describe legislative or administrative procedures intended to expedite the NEPA
process.92 It usually refers to a process or procedures to better coordinate federal,
state, tribal, or local agency action, when compliance with multiple environmental
laws, regulations, or executive orders is required.
91 Robert Smythe and Caroline Isber, “NEPA in the Agencies: 2002, A Report to the Natural
Resources Council of America,” October 2002, available at [http://www.naturalresources
council.org/ewebeditpro/items/O89F2656.pdf]. Many of the findings regarding agency
implementation of NEPA and recommendations for change were directed to the CEQ NEPA
Task Force.
92 The term “streamlining” is also used to refer to administrative or legislative actions
intended to expedite the process of complying with other environmental requirements, such
as permitting. In this report, use of the term refers only to efforts to expedite the NEPA
process.
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In 2006, most agencies filed fewer than 10 EISs.93 Just over 63% of all EISs
were filed by six agencies — USDA’s Forest Service (144), DOT’s Federal Highway
Administration (66), the Department of the Interior’s Bureau of Land Management
(42) and National Park Service (34), the Army Corps of Engineers (56), and the
Department of Energy’s Federal Energy Regulatory Commission (32). It may not be
surprising, then, that many streamlining activities involve actions sponsored by those
agencies. For example, what follows are bills enacted by the 108th or 109th Congress
and selected types of projects for which streamlining provisions have been included:
! Healthy Forests Restoration Act of 2003 (P.L. 108-148): “hazardous
fuel reduction” projects on federal land (see CRS Report RS22024,
Wildfire Protection in the 108th Congress, by Ross W. Gorte).
! Vision 100-Century of Aviation Reauthorization Act (P.L. 108-176):
airport capacity enhancement projects at congested airports.
! The Safe, Accountable, Flexible, and Efficient Transportation Equity
Act of 2005: A Legacy for Users (P.L. 108-59): construction of or
modifications to surface transportation projects (see CRS Report
RL33057, Surface Transportation Reauthorization: Environmental
Issues and Legislative Provisions in SAFETEA-LU (H.R. 3), by
Linda Luther).
! Energy Policy Act of 2005 (P.L. 108-58): various energy
development projects, such as oil and gas leasing and permitting on
federal land, and the designation of energy facility rights-of-way and
corridors on federal lands (see CRS Report RL32873, Key
Environmental Issues in the Energy Policy Act of 2005 (P.L. 109-58,
H.R. 6), by Brent D. Yacobucci, Coordinator).
Streamlining provisions are also included in the House-passed version of the
Water Resources Development Act (WRDA) of 2007 (H.R. 1495, §§ 2027-2028,
passed on April 19, 2007). Streamlining provisions would apply to new Army Corps
of Engineers water resources studies and projects. The Senate-passed version of
WRDA (S. 1248, passed May 17, 2007) does not have streamlining provisions.
Streamlining provisions are unique to the class of projects at issue. However,
most include some or all of the following elements:
! The designation of specific projects as categorical exclusions.
! The designation of a specific agency as the “lead agency” for all
classes of certain actions (e.g., delegation of DOT as the lead agency
for all highway or transit projects requiring review under NEPA).
! Direction to the lead agency to develop a “coordinated
environmental review” process to ensure early coordination and
cooperation among federal, state, tribal, and local agencies required
to participate in a project.
93 See the Council on Environmental Quality’s “Number of EIS filed with EPA by Federal
Agencies” for 2006, available at [http://ceq.eh.doe.gov/nepa/nepanet.htm].
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! Delegation of specific authority to the lead agency, such as the
authority to establish deadlines for cooperating agencies, specify a
project’s “purpose and need,” or specify project alternatives.
! Delegation of certain federal authority to state or local agencies (e.g.,
the authority to determine whether certain classes of projects may be
categorically excluded from environmental requirements).
! Direction to the lead agency to develop dispute resolution
procedures if agencies reach an impasse in the NEPA process.
Streamlining proposals have generated a great deal of controversy among
interested stakeholders (e.g., agency representatives, industry groups, and
environmental organizations). Most stakeholders agree that the process for
complying with environmental requirements applicable to complex federal projects
can be implemented more efficiently. How that should be done and the degree to
which it is necessary have been the subject of considerable debate. Some
stakeholders, such as industry representatives who would like to see projects
implemented more quickly, argue that the authority of lead agencies must be
strengthened to reduce delays caused by disagreements among agencies. They also
contend that lead agencies should have the authority to set and enforce deadlines with
regard to the cooperating agency decision-making process. Environmental groups
are concerned that by speeding up the compliance process and strengthening lead
agency authority, concerns of the public or cooperating agencies will be minimized
or ignored, in effect rubber stamping lead agency decisions. Further, some
environmental groups contend that “streamlining” is a thinly veiled attempt at
weakening environmental protection and reducing public participation in the federal
decision-making process.
For more information about streamlining the NEPA process, see CRS Report
RL33267, The National Environmental Policy Act: Streamlining NEPA, by Linda
Luther.
Conclusion
NEPA is a procedural statute that, along with CEQ and individual agencies’
regulations, specifies procedures that must be followed in the federal decision-
making process. It imposes no requirement other than to require agencies to consider
the environmental impacts of their actions before proceeding with them and to
involve the public in that process. It does not dictate what the decision must be.
More specifically, it does not require the agency to select the least environmentally
harmful alternative or to elevate environmental concerns above others.
The role the courts have played in NEPA’s implementation is arguably more
pronounced compared to many other environmental laws because of several unique
factors. These include the initial lack of binding regulations applicable to the EIS
preparation process, the absence of an agency authorized to enforce its requirements,
and NEPA’s requirement to involve the public in the decision-making process. With
regard to the latter, when members of the public oppose a project or feel that their
opinions are not given sufficient weight, their involvement may result in turning to
the courts to halt the project until their concerns are addressed. During the past 35
years, interested stakeholders have challenged the adequacy of NEPA documentation
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and agency compliance with NEPA in court and, in some instances, used NEPA
litigation to try to halt or slow projects to which they were opposed. As a result, the
progress of some federal projects was slowed. However, particularly in the past 10-
15 years, the number of projects affected by NEPA-related litigation is very small.
Also, unlike other environmental laws, NEPA itself cannot stop a project altogether.
This does not mean that, during the course of a NEPA-related lawsuit, an agency may
not decide to abandon a given project or project alternative.
As a policy statute, NEPA supplements other statutes. Consequently, agencies
often are required to comply with provisions of other state, tribal, and federal
environmental requirements before they can proceed with a given action. This
requirement can lead to confusion when procedures to comply with other laws are
integrated with NEPA compliance, and it can give the impression that NEPA alone
is responsible for the time it takes to obtain the appropriate authorization or approval
for a federal project.
Although stakeholders disagree about the extent to which NEPA currently halts
or delays federal actions, few disagree that agencies can improve their methods of
NEPA compliance. Many elements of recent legislative proposals intended to
streamline NEPA compliance already exist in CEQ’s regulations. Those include
integrating NEPA early in the planning process, integrating NEPA requirements with
other environmental requirements, eliminating duplication with state and local
procedures, swiftly addressing disputes with other agencies, and establishing
appropriate time limits on the EIS process. Debate is likely to continue with regard
to if or to what degree further streamlining may be accomplished.
Selected References
Bear, Dinah. “NEPA at 19: A Primer on an ‘Old’ Law with Solutions to New
Problems,” 19 Environmental Law Reporter 10060, February 1989.
Caldwell, Lynton. The National Environmental Policy Act: An Agenda for the
Future. Bloomington, IN: Indiana University Press, 1998.
Council on Environmental Quality. “Forty Most Asked Questions Concerning
CEQ’s National Environmental Policy Act Regulations,” 46 Federal Register
18026, March 23, 1981.
Council on Environmental Quality. “Memorandum for General Counsels, NEPA
Liaisons and Participants in Scoping,” April 20, 1981.
Council on Environmental Quality. “The National Environmental Policy Act: A
Study of Its Effectiveness After Twenty-five Years,” January 1997.
Council on Environmental Quality’s NEPA Task Force. “Report to the Council on
Environmental Quality: Modernizing NEPA Implementation,” September 2003.
Smythe, Robert and Isber, Caroline. “NEPA in the Agencies: 2002, A Report to the
Natural Resources Council of America,” October 2002